UNESCO Convention: "The time for negotiations is over. Energies should now shift to building the support to ensure that the convention is approved by the required majority for its adoption at the General Conference in October"

Secretariat for the International Liaison Committee of Coalitions for Cultural Diversity (ILC), July 5, 2005 – 2005/07/05

The International Liaison Committee of Coalitions for Cultural Diversity (ILC), which represents the cultural professional organizations gathered around 30 national Coalitions for cultural diversity, has stated its opinion of the text issued to the third and final session of the intergovernmental meeting of experts at UNESCO, which wrapped up on June 3 in Paris. In its current Bulletin Coalition Currents, ILC discusses the highlights of the proposed UNESCO Convention: “The principal success of the proposed UNESCO convention lies in the fact that it achieves the fundamental objective of recognizing in international law the distinctive nature of cultural goods and services and affirms the sovereign right of countries to take policies in support of cultural diversity. In this, it represents a historic step in the campaign to establish a new international legal framework specifically conceived from a cultural perspective.” At the same time, ILC underlines that the proposed convention represented the first attempt by countries to reach agreement on a treaty addressing this issue, and significant compromises were made along the way to reaching that agreement.

However, ILC notes that although the question of how the convention would set out its relationship to other treaties was one of the major debates throughout negotiations, the resulting Article 20 contains encouraging components—notably the principle that the convention will not be subordinated to trade agreements or other international agreements and the undertaking by member states to take its provisions into account when applying and interpreting other treaties to which they are party and entering into other international agreements. Moreover, maintains ILC, the principle that parties to the convention should take its provisions into account when interpreting and applying other international treaties to which they are party may well prove to be the most significant aspect of this article, and may constitute a genuine breakthrough in international law.

Still, the ambiguous nature of the Article 20 becomes evident when one compares paragraph 1 of the article with paragraph 2. According to ILC, “Reconciling the statements contained in these two paragraphs is no easy matter, and it is again worth noting that in the final 48 hours of the negotiations the delegations for Japan, Israel, Argentina, Chile, New Zealand, Australia, and Turkey all received directives from their capitals to exercise reservations with respect to this article until the General Conference. Meanwhile, the American reaction against paragraph 1 was vehement. They argued its effect would be to subordinate all other treaties to the UNESCO Convention, and until the very end of the negotiations they were insisting that the text put forward to the General Conference include two options for Article 20 for further negotiations: 1) the version ultimately adopted; and 2) their proposal, which consisted solely of paragraph 2. Eviscerating Article 20 will almost certainly be the top priority of their campaign to reopen the negotiations and water down the convention.

In this, ILC is extremely concerned about the fact that “U.S. Pressure will succeed in diluting the text prior to the General Conference.” “The U.S. was alone in its head-on attack on the convention,” although in the course of the negotiations a small number of countries chose to exercise reservations with respect to a number of articles, particularly 20, and some have since withdrawn their reservations (Argentina, Chile). However, ILC asserts that the impact of the opposition by the U.S., which is ensuring that the notions of consensus and unanimity prevail, combined with the uncertainty created by those countries filing reservations, had “an impact on the Director General,” which was apparent in his June 7 speech at the second meeting of culture ministers of Asia and Europe (ASEM) (For a synthesis, see our Bulletin of June 13 and July 11, 2005).

In fact, ILC underlines that “During the third negotiations session, there were a number of reports of U.S. pressure being applied on the Director General behind the scenes. It was also clear during the May-June negotiations that many countries were still holding their own internal debates with respect to the content of the convention. In some cases, these debates were evident even within the delegations at UNESCO, which raises the question of how solid the support for the convention is among these countries—and what might happen if external pressure was brought to bear on them to support a proposal to reopen negotiations. Because that pressure will surely come.” Moreover, while referring to “the siren call to make one last attempt at bringing the United States on-board,” ILC added that it is patently clear that the U.S. has no intention of signing on to a real convention. From the beginning, they followed a ‘dilute and delay’ strategy—and based on their recent track record on international treaties, one cannot help but be skeptical about their interest in ever ratifying. Their latest gambit is merely the endgame of this approach.”

ILC underlines moreover that many compromises have already been made along the way in order to build the strong majority in support of the text as it now is. From the point of view of organizations representing authors, artists and other cultural professionals, the end result is a crucial first step, even if it is imperfect. It predicts that “the only possible outcome of reopening negotiations would be a weaker text. This would be completely unacceptable. The time for negotiations is over. Energies should now shift to building the support to ensure that the convention is approved by the required two-thirds of UNESCO’s 192 member states when it is presented to the General Conference in October. And organizations representing cultural professionals should not be idle during this crucial period. Internal debates will likely continue within governments in many capitals in the run-up to October—particularly with respect to Article 20. These discussions will extend well beyond culture ministries. Foreign affairs, international trade, and other departments will likely be involved as well. Ultimately, final positions may well be taken at the highest levels of government. For this reason, it is more important than ever that heads of state and government, as well as cabinet ministers in all departments, hear clearly from cultural organizations that they must hold the line on the convention’s content, resist the pressure to reopen negotiations, support it in October, and ratify it on an urgent basis.” [05-23]